D. Lakshmana Rao vs D. Kamala Bai and Others

The 1st respondent who is the divorced wife of the petitioner, filed MC. No. 3 of 1992 on the file of the of the Additional Judicial Magistrate of I Class, Adoni claiming maintenance at Rs. 500/- per month. The learned Magistrate granted Rs. 400/- per month and in Crl.R.P. No. 44 of 1994 on the file of the II Additional Sessions Judge, Kurnool, the amount of Rs. 400/- has been modified and reduced to Rs. 300/- per month. The Petitioner filed this petition u/s 482 Cr.P.C. to quash the order in R.C. No. 3 of 1992 on the file of the Additional Judicial Magistrate of I Class, Adoni as modified by the Appellate court in the above revision.

The counsel for the petitioner contends that the 1st respondent having been divorced by a valid decree of divorce on the ground that she has deserted the petitioner is not entitled under sub-section (4) of Section 125 Cr.P.C. for claiming maintenance and that there is no evidence on record to prove that the petitioner had sufficient means to maintain the wife.

The counsel for the 1st respondent has raised an objection that the proceedings u/s 482 Cr.P.C. are only initiated since the petitioner was prohibited, by the legal bar u/s 397(2) Cr.P.C. from filing a 2nd revision after he failed before the Sessions Court.

It is true that Section 397(2) Cr.P.C. prohibits the same party from filing a 2nd revision in the High Court. The Supreme Court in Dharampal and others Vs. Smt. Ramshri and others, held that a 2nd revision by the party cannot be entertained u/s 482 Cr.P.C. as it was well settled that the inherent powers u/s 482 of the Code cannot be utilised for exercising the powers which are expressly barred by the Code. However, in a recent judgment of the Supreme Court in Ganesh Narayan Hegde Vs. S. Bangarappa and Others, it has been held that Section 482 Cr.P.C. is not a bar for invoking the jurisdiction of this Court on the mere ground that a 2nd revision is prohibited u/s 397(2) Cr.P.C. and that both the Sections operate in two different fields. However, the learned Judges cautioned in that decision that the power u/s 482 Cr.P.C. being an extra ordinary jurisdiction to correct any abuse of process of Court can be exercised in a given set of circumstances, if the Court finds that its inherent powers should be exercised to prevent abuse of process of the Court. I, therefore, cannot throw out this petition at the threshold. it is, therefore, necessary to see whether the provisions u/s 482 Cr.P.C. are invoked in this case to circumvent the provisions of Section 397(2) Cr.P.C. to convert this Court as a Second Revisional Court. The petitioner has raised before me the same questions that have been raised before the Courts below. Those questions have been considered by the Courts below and were rejected upon a consideration of all the facts of the case. Hence, this petition can be held to be as having been filed to circumvent the provisions of Section 397(2) Cr.P.C. and, therefore, this petition can be dismissed on that short ground. However, in view of the submissions made by the counsel for the petitioner, I proceed to deal with the same. The contention that a decree of divorce on the ground of desertion by the wife, having been validly obtained, Section 125(4) Cr.P.C. cannot be made applicable to the facts of the case, in my view, is misconceived. u/s 125(1) Cr.P.C., a wife is entitled for maintenance if she is unable to maintain herself. Under Explanation (b), a divorced woman is included in the term ''wife''. It, therefore, follows that even a divorced woman is entitled for maintenance if she is unable to maintain herself. Section 125(4) Cr.P.C. cannot be read as including the divorced woman, in its operation. Section 125(4) Cr.P.C. is only applicable to a woman who is a wife not a divorced woman. In this connection, in a decision in Vanamala v. H. M. Ranganatha Bhatta, 1995 (3) ALD 17 the Supreme Court held :

"On a plain reading of this section it seems fairly clear that the expression ''wife'' in the said sub-section does not have the extended meaning of including a woman who has been divorced. This is for the obvious reason that unless there is a relationship of husband and wife there can be no question of a divorcee woman living in adultery or without sufficient reason refusing to live with her husband. After divorce where is the occasion for the woman to live with her husband ? Similarly there would be no question of the husband and wife living separately by mutual consent because after divorce there is no need for consent to live separately. In the context, therefore, sub-section (4) of Section 125 does not apply to the case of a woman who has been divorced or who has obtained a decree for divorce."

It is, therefore, clear that even a divorced woman who has been divorced on the ground that she had deserted the husband is entitled for maintenance under sub-section (1) of Section 125 Cr.P.C. Both the Courts below found that the petitioner has sufficient means to maintain the wife and in that view, granted the maintenance as stated above. I cannot interfere wife such a finding. The criminal petition is, therefore, dismissed.

Petition dismissed.